The Madisonian Constitution: Rightly Understood

Benjamin Kleinerman
90 Texas L. Rev. 943

In his Review of The Executive Unbound: After the Madisonian Republic, Professor Benjamin Kleinerman agrees with Professors Eric Posner and Adrian Vermeule to the extent they point to a problem in our constitutional order: The executive is increasingly “unbound” insofar as Congress has continuously passed enabling legislation which promotes the executive’s complete freedom. Kleinerman also agrees with their critique of legal liberalism’s hope to reestablish Congress’s supposed constitutional preeminence. But Kleinerman disagrees with Posner and Vermeule when they implicitly cede to legal liberalism the claim that, constitutionally, Congress should be preeminent. Kleinerman argues that liberal legalism’s characterization of the necessary preeminence of Congress over the President is a mischaracterization of our constitutional order. Kleinerman concludes that the constitutional order depends upon three institutions actively engaged in political conflict over the scope of their powers, and Congress currently passes off its power to both the presidency and the courts. Given that the constitutional order insulates those two institutions on the assumption that Congress will be too aggressive, perhaps we should rethink the constitutional order itself, Kleinerman argues.